January 2010

Looking Ahead

On January 8, 2010, Microsoft Corporation (“Microsoft”) filed a combined petition for panel rehearing and rehearing en banc from panel opinion, i4i Ltd. Partnership v. Microsoft Corp., No. 09-1504
(Fed. Cir. Dec. 22, 2009).  In its petition, Microsoft characterizes two of its challenges as “precedent-setting questions of exceptional importance:

1. Whether a $290,000,000 damages award—the largest ever sustained on appeal in a patent infringement case—can stand where:

1. The award rests on expert testimony that fails minimum standards of reliability and is unmoored to the real world; and
   
   
2. Microsoft preserved its objection to the excessiveness of the award by moving for new trial or remittitur?

2. Whether injunctive relief can be predicated solely on past harm?” 

Pet. 1.  Microsoft also contends that the panel misapprehended a point of fact when it stated that Microsoft “does not challenge . . . the sufficiency of the evidence supporting the jury’s willfulness finding.”  Id.  It remains to be seen whether the Court will grant Microsoft’s petition.